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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-07-IH-8320
WSKQ Licensing, Inc. ) FRN No.: 0004976882
Licensee of Station WSKQ-FM ) NAL/Acct. No.: 201032080016
New York, New York ) Facility ID No.: 61641
)
)
FORFEITURE ORDER
Adopted: August 22, 2012 Released: August 22, 2012
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of sixteen thousand dollars ($16,000) against WSKQ Licensing, Inc.
(WSKQ), licensee of WSKQ-FM, New York, New York (Station), and a
subsidiary of Spanish Broadcasting Systems, Inc. (SBS), for willfully
and repeatedly violating Section 73.1206 of the Commission's rules by
recording a telephone conversation for broadcast without prior
notification to the called party.
II. BACKGROUND
2. As discussed in more detail in the Notice of Apparent Liability for
Forfeiture (NAL) in this case, the Enforcement Bureau (Bureau)
received a complaint (Complaint) alleging that, on August 23, 2007,
WSKQ broadcast over the radio a prank call made by one of its
employees to a member of the public. As described in the Complaint,
the Station employee made a call to a woman-the call
recipient-pretending to be an employee of a local hospital, and told
her that her husband had been seriously injured in a motorcycle
accident and that he later died at the hospital. Further, according to
the Complaint, the call recipient could be heard over the radio
distraught when she received this information, at which point the
Station employee informed her that the call was a "joke."
3. On September 25, 2008, the Bureau issued a letter of inquiry (LOI) to
WSKQ inquiring into these allegations. In its response, WSKQ stated
that its parent company, SBS, contracted with a vendor, Rubin Ithier,
who made the call and recorded the conversation for a prank call
feature show. The Licensee admitted that Ithier initiated the call
that was broadcast by the Station, and that neither the Station nor
Ithier informed the call recipient that the call was being recorded
for later broadcast until after the call was recorded. The Licensee
further admitted that it broadcast the call more than once. In view of
the record evidence, including WSKQ's admissions, we issued on
February 4, 2010, an NAL proposing a forfeiture in the amount of
sixteen thousand dollars ($16,000).
4. On March 8, 2010, WSKQ filed a response to the NAL, urging
cancellation of the forfeiture. In support of its response, WSKQ
contends, first, that it "has violated no rule" because the "plain
language" of the telephone broadcast rule makes it applicable only to
recordings made by a licensee and not, as here, to recordings made by
its contractor and vendor. WSKQ states that attributing the vendor's
recording to the Licensee "improperly expands the rule beyond its
plain language and intended application." Second, WSKQ contends that
the NAL did not fully consider the fact that the call recipient
granted permission for the call to be aired, and argues that the call
was, thus, consensual and did not "impinge on the call recipient's
legitimate expectation of privacy."
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act, as amended (Act),
Section 1.80 of the Commission's rules, and the Commission's
forfeiture guidelines set forth in the Forfeiture Policy Statement. In
assessing forfeitures, Section 503(b) of the Act requires that we take
into account the nature, circumstances, extent, and gravity of the
violation, and with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and other
such matters as justice may require. We have considered WSKQ's
response in light of these statutory factors, and find that neither
cancellation nor reduction of the forfeiture is warranted for the
reasons discussed below.
6. Section 73.1206 of the Commission's rules, also referred to as the
telephone broadcast rule, requires that, before broadcasting or
recording a telephone conversation for later broadcast, a licensee
must inform any party to the call of its intention to broadcast the
conversation, except where such party is aware, or may be presumed to
be aware from the circumstances of the conversation, that it is being
or likely will be broadcast. As explained in the NAL, Section 73.1206
reflects the Commission's longstanding policy that prior notification
is essential to protect individuals' legitimate expectation of privacy
and to preserve their dignity by avoiding nonconsensual broadcasts of
their conversations.
7. We disagree with WSKQ's contention that it did not violate the
telephone broadcast rule. WSKQ asserts that it could not have violated
the rule because the plain language of the rule describes prohibited
conduct by "a licensee" specifically, and that because the
conversation, in this case, was recorded by a vendor, who is not a
licensee, the rule is inapplicable. We find this line of argument to
be meritless. WSKQ offers no relevant legal precedent to support its
narrow reading of the rule, nor provides any other authority that
persuades us. We have consistently held that licensees are responsible
for the programming aired on their stations and for violations of
Commission rules by employees and independent contractors. To hold
otherwise would allow a licensee to circumvent the Commission's rules
with impunity by simply having an agent perform, on its behalf, any
acts that violate Commission rules.
8. Furthermore, in this case, it is undisputed that WSKQ's parent
company, SBS, specifically contracted with a vendor to record various
calls for WSKQ's prank call feature show, demonstrating a clear intent
to broadcast the prank call. WSKQ admits: "[T]he telephone call was
initiated, as described, by Ramon Sierra, aka Ruben Ithier, the owner
of a vendor with whom [SBS] contracted to create `caistes,' which are
calls made during WSKQ's `El Vacilon' morning show . . . . WSKQ had a
segment called `Llamado cruel' (`cruel calls' or `caistes') during the
El Vacilon morning show." It is further undisputed that the call
recipient had not received prior notice that the call was being
recorded for later broadcast. Despite knowing the foregoing
circumstances, WSKQ nevertheless agreed to air the call. As such,
WSKQ's violation of the telephone broadcast rule was willful, and it
cannot now claim innocence for the actions of a vendor with which it
(or its parent company, SBS) specifically contracted to make these so
called "cruel [prank] calls" to unsuspecting individuals.
9. We also disagree with the Licensee's contention that the consent to
broadcast the call, obtained after the recording concluded, insulates
the Licensee from the rule's application. The rule requires notice
obtained before recording for broadcast commences, not consent
obtained after the fact. It is this initial notice that protects the
privacy of the call recipient.
10. We have examined WSKQ's response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that WSKQ willfully
and repeatedly violated Section 73.1206 of the Commission's rules. We
hereby affirm the NAL and impose a forfeiture in the amount of sixteen
thousand dollars ($16,000).
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, Section 1.80 of the Commission's
rules, and authority delegated by Sections 0.111, 0.204, and 0.311 of the
Commission's rules, WSKQ Licensing, Inc., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of sixteen thousand dollars ($16,000) for
repeated and willful violation of Section 73.1206 of the Commission's
rules.
12. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules by the close of business on or before August 29,
2012. If the forfeiture is not paid within the period specified, the case
may be referred to the U.S. Department of Justice for enforcement of the
forfeiture pursuant to Section 504(a) of the Act. WSKQ Licensing, Inc.
shall send electronic notification of payment to Jeffrey Gee at
Jeffrey.Gee@fcc.gov, Anjali Singh at Anjali.Singh@fcc.gov, and Judy
Lancaster at Judy.Lancaster@fcc.gov on the date said payment is made.
13. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and FRN
referenced above. Regardless of the form of payment, a completed FCC Form
159 (Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID) and
enter the letters "FORF" in block number 24A (payment type code). Below
are additional instructions you should follow based on the form of payment
you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
14. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal Communications
Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. If you have questions regarding payment procedures, please contact
the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
15. IT IS FURTHER ORDERED that a copy of this FORFEITURE ORDER shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to WSKQ at its address of record, and to its counsel of record,
Dennis P. Corbett, Nancy A. Ory, and F. Scott Pippin, Lerman Senter PLLC,
2000 K Street, NW, Suite 600, Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Federal Communications Commission
47 C.F.R. S: 73.1206.
See WSKQ Licensing, Inc., Notice of Apparent Liability for Forfeiture, 25
FCC Rcd 1287 (Enf. Bur. 2010) (NAL). A comprehensive recitation of the
facts and history of this case can be found in the NAL and is incorporated
herein by reference.
See Complaint to Federal Communications Commission (Aug. 23, 2007) (on
file in EB-07-IH-8320) (Complaint).
See id. at 1.
Id.
See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
Hearings Division, FCC Enforcement Bureau, to WSKQ Licensing, Inc. (Sept.
25, 2008) (on file in EB-07-IH-8320).
Letter from Bruce A. Eisen, Kaye Scholer, LLP, Counsel for WSKQ Licensing,
Inc., to Marlene Dortch, Secretary, Federal Communications Commission
(Oct. 27, 2008) (on file in EB-07-IH-8320) (LOI Response). The LOI
Response included the declaration of Ramon Sierra a/k/a Ruben Ithier
(Declaration) and an English translation of a transcript of the telephone
call at issue (Translation of Transcript).
See id. at 1-3, Declaration at 1, Translation of Transcript at 1-3. See
also NAL, 25 FCC Rcd at 1287-89.
See LOI Response at 4.
See NAL, 25 FCC Rcd at 1292.
See Response to Notice of Apparent Liability for Forfeiture, filed by
Dennis P. Corbett, Nancy A. Ory, and F. Scott Pippin, Lerman Senter PLLC,
Counsel to WSKQ Licensing, Inc. (Mar. 8, 2010) (on file in EB-07-IH-8320)
(NAL Response). The Bureau and SBS subsequently entered into a tolling
agreement on May 23, 2012, that tolled the statute of limitations period
specified in Section 2462 of Title 28 of the United States Code, 28 U.S.C.
S: 2462, with respect to this case until November 21, 2012, to permit the
parties to discuss potential settlement options, which discussions
commenced on March 14, 2011, and ended on July 17, 2012.
NAL Response at 2-5.
Id. at 3-4.
Id. at 3 (internal quotations omitted).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 73.1206. The Commission will presume such awareness only when
"the other party to the call is associated with the station (such as an
employee or part-time reporter), or where the other party originates the
call and it is obvious that it is in connection with a program in which
the station customarily broadcasts telephone conversations." Id.
See NAL, 25 FCC Rcd at 1290-91 (citing authorities).
See LOI Response at 2-6.
We also find WSKQ's line of argument here to be disingenuous, particularly
since it previously conceded to the propriety of our application of the
rule in the same context we have here (i.e., a recording contracted to a
vendor). In 2008, the Bureau proposed a forfeiture in the amount of
sixteen thousand dollars ($16,000) each against WSKQ and WXDJ for
violating the telephone broadcast rule by contracting with the same
independent vendor here (i.e., Rubin Ithier) to record so-called "caistes"
without prior notice to the unsuspecting call recipients. See WXDJ
Licensing, Inc, et al., Notice of Apparent Liability, 23 FCC Rcd 14933
(Enf. Bur. 2008) (WXDJ/WSKQ NAL). WSKQ did not dispute the merits of the
Bureau's findings therein, and paid the forfeiture; WXDJ, however, did not
pay the forfeiture, but instead filed a response, urging for a reduction
of the forfeiture, which was subsequently denied. See WXDJ Licensing,
Inc., Forfeiture Order, 25 FCC Rcd 3911 (Enf. Bur. 2010) (imposing $16,000
forfeiture for violation of the telephone broadcast rule) (petition for
reconsideration pending).
WSKQ relies on criminal law precedent in support of its argument. See NAL
Response at 4. Such reliance is misplaced and unpersuasive. The cited
support stems from interpretation of criminal statutes, and is
inapplicable here. Criminal statutes are generally subject to stricter
scrutiny by the courts than are administrative rules and sanctions, which,
if reasonable, receive deference from the courts. Contrast Zaimi v. United
States, 476 F.2d 511 (D.C. Cir. 1973) (holding that "penal statutes are to
be interpreted with exactitude") with Northeast Hospital Corp. v.
Sebelius, Secretary, U.S. Dept. of Health and Human Svcs., Memorandum
Opinion, 699 F. Supp. 2d 81, 85-86 (D.D.C. 2010) ("[U]nder the APA, a
court is to presume that the agency's action is valid and that [a]n
agency's interpretation of a statute need not be the best or most natural
one by grammatical or other standards[,] . . . [r]ather [it] need be only
reasonable to warrant deference.") (internal quotations omitted).
See, e.g., WXDJ/WSKQ NAL, 23 FCC Rcd at 14937 ("We further find that the
call's origination and recording by an independent contractor, rather than
the Licensees themselves, does not exculpate WXDJ Licensing or WSKQ
Licensing from liability."); Proactive Communications, Inc., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 9079, 9082 (Enf. Bur. 2008)
("[T]he Commission has consistently ruled that licensees are responsible
for the selection and presentation of program material aired over their
stations as well as for the acts and omissions of their employees.")
(forfeiture paid); Des Moines Independent Community School District,
Forfeiture Order, 24 FCC Rcd 3869, 3870-71 (Mass Med. Bur. 2009) ("[T]he
Commission has long held that licensees are responsible for the acts and
omissions of their employees and independent contractors, and has
consistently refused to excuse licensees from forfeiture penalties where
the actions of employees or independent contractors have resulted in
violations."); see also American General Media Corporation, Letter, 14 FCC
Rcd 6445 (Mass Med. Bur. 1999) (finding telephone broadcast rule violation
and holding that, "although the . . . program was aired pursuant to a
programming agreement and the air personalities were not employees of [the
station], [the licensee] is responsible for any violations of the
Commission's rules which occurred during that program").
See NAL, 25 FCC Rcd at 1291; see also NAL Response at 1-2.
LOI Response at 1-2.
See id. at Translation of Transcript at 3-5.
The Licensee should have been aware, as of the time of this conduct and as
of the filing of its response to our NAL, that we have specifically
rejected this argument in similar cases against another SBS station. See
WXDJ Licensing, Inc., 19 FCC Rcd 22445, 22446 (Enf. Bur. 2004); WXDJ
Licensing, Inc., 25 FCC Rcd 3911, 3912-14 (Enf. Bur. 2010).
See NAL Response at 3; 47 C.F.R. S: 73.1206. The Licensee points out (see
NAL Response at notes 1, 7) imprecision in the NAL's recitation of how
certain factual events unfolded. Even if the events occurred as clarified
by the Licensee, they are inconsequential to our decision and the
resulting forfeiture.
See 47 C.F.R. S: 73.1206; see also Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463-64 (1988) (the Commission
specifically considered and rejected amending the telephone broadcast rule
to allow consent after the fact).
See supra note 20; Cumulus Licensing LLC, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 1667, 1670 (Enf. Bur. 2009) ("The Commission has
held that the prior notification requirement ensures the protection of an
individual's `right to answer the telephone without having [his or her]
voice or statements transmitted to the public by a broadcast station' live
or by recording for delayed airing.") (forfeiture paid).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(f)(4).
47 C.F.R. S:S: 0.111, 0.204, 0.311.
47 C.F.R. S: 73.1206.
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
47 C.F.R. S: 1.1914.
(Continued from previous page...)
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Federal Communications Commission DA 12-1370
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Federal Communications Commission DA 12-1370